Wow!!!!! If you did not have the opportunity to join us in Orlando for our 8th Annual Emerging Issues Conference, you certainly missed many very high quality educational sessions, and the opportunity to network with almost 300 of your colleagues from across the country. The setting was delightful; the weather most pleasant, even for this transplanted San Franciscan, not too hot and not too cold. Many thanks go out to Bill Horton and Hilary Young as chairs for the conference, their planning committee and the Interest Group leadership which spent countless hours putting together a program which received rave reviews and was certainly first rate.

In Retail Industry Leaders Ass'n v. Fielder, the United States Court of Appeals for the Fourth Circuit affirmed a Maryland District Court's decision holding that the Maryland "Fair Share Health Care Fund Act"; (the "Act") is preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq. ("ERISA") and therefore unenforceable. The Act (popularly known as the "Wal-Mart law") is one of the first, recently enacted, state laws of its kind to be challenged by an employer group on ERISA preemption grounds. The Act required large for-profit employers to devote eight percent of total wages paid to employees in the state to health insurance costs for its employees or pay the difference between what is spent on employee health insurance and the minimum percentage of wages to the state. In turn, any money paid to the state pursuant to this law would be earmarked exclusively for state Medicaid or children's healthcare purposes.

As with most things in life (and especially so in the area of healthcare), the devil's in the details. As commercial managed care organizations ("MCOs") and healthcare providers begin to take tentative steps into the realm of pay-for-performance ("P4P") initiatives, both sides are quickly learning that navigating the maze of issues can be time-consuming, contentious and costly. This article focuses on some of the key decisions which must be made after the MCO has decided to offer, and the provider has decided to participate in, a P4P program.

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The opinions expressed are those of the authors and shall not be construed to represent the policies or positions of the ABA or the ABA Health Law Section.